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CONSTRUCTIVE ACCELERATION

AND COST

MASLAWATI MONGED

UNIVERSITI TEKNOLOGI MALAYSIA

CONSTRUCTIVE ACCELERATION

AND COST

MASLAWATI MONGED

A dissertation submitted in partial fulfillment of the

requirements for the award of the degree of

Master of Science (Construction Contract Management)

Faculty of Built Environment

UniversitiTeknologi Malaysia

JUNE 2014

iii

This dissertation is dedicated to Mohameed Jalaluddin and Muhammad Jihad and to

all my family.

iv

ACKNOWLEDGEMENT

The writing of this dissertation has been one of the most significant academic

challenges I have ever had to face. Without the support, patience and guidance of the

following people, this study would not have been completed. It is to them that I owe

my deepest gratitude.

En. Jamaludin Yaakob, who undertook to act as my supervisor despite his many

other academic commitments, his wisdom, knowledge and commitment to the

highest standards inspired and motivated me.

Mohameed Jalaluddin, my husband, without whom this effort would have been

worth nothing. Your support, encouragement and constant patience have taught me

so much about sacrifice, discipline and compromise.

v

ABSTRACT

The legal doctrine of constructive acceleration has developed into a relatively

common claim on construction projects in the United States. The position there is

that if an employer causes delay but refuses to grant an extension of time for it, and

the contractor accelerates to win back the lost time, the refusal of the employer or his

certifier is treated as a constructive instruction to accelerate, for which the contractor

is entitled to compensation under the contract. English law, for that matter by

inference in this regard Malaysian law, does not seem to implicitly accept this

concept of constructive acceleration. It remains to be said that even if „loss and

expense‟ or „costs‟ of constructive acceleration is claimable, this is strictly beyond

the jurisdiction of the contract administrator and the same can only be pursued in

arbitration or litigation. The essence of the problem is the exact nature of „temporary

default‟, when the contractor is not clear whether he is entitled to an extension of

time and may appear to be in breach of contract pending the final determination of

extension of time while left with the same choice, whether or not to accelerate. This

dissertation is aimed at determining the contractor’s entitlement to claim for cost of

acceleration especially in the case of constructive acceleration. Given the legalistic

nature of this dissertation, the approach adopted in this research is mainly case law

based. Through the analysis of courts judgments, the meaning and effects of

acceleration can be determined while contractor’s obligation, acceleration claims and

acceleration agreement can be identified and ascertained.

vi

ABSTRAK

Doktrin undang-undang bagi “constructive acceleration” telah berkembang sebagai

tuntutan yang biasa dalam projek pembinaan di Amerika. Kedudukan tuntutan ini di

sana adalah, sekiranya pemilik projek yang menyebabkan kelewatan tetapi menolak

kelulusan lanjutan masa bagi kelewatan tersebut dan kontraktor “accelerate” untuk

menebus kelewatan, penolakan tersebut di sebagai arahan untuk “constructive

acceleration” di mana kontraktor layak mendapat gantirugi menurut kontrak.

Undang-undang Inggeris, secara kesimpulan merujuk undang-undang Malaysia

seumpama tidak menerima secara tersirat konsep “constructive acceleration” ini.

Walaupun tuntutan kerugian dan perbelanjaan atau kos bagi “constructive

acceleration” layak dituntut, ia adalah di luar bidang kuasa pentadbir kontrak dan ia

hanya boleh dituntut melalui proses timbang tara atau tindakan undang-undang.

Masalah utama bagi tuntutan ini adalah sifat “temporary default”, apabila kontraktor

tidak jelas samada beliau layak mendapat lanjutan masa dan mungkin melanggar

kontrak sementara menunggu keputusan lanjutan masa dan perlu memilih samada

meneruskan “accelerate” atau tidak. Disertasi ini bertujuan untuk menentukan

kelayakan kontraktor bagi menuntut kos “acceleration” lebih-lebih lagi kos

“constructive acceleration”. Oleh kerana disertasi ini bersifat legalistik, pendekatan

yang digunakan adalah berasaskan “case law”. Melalui analisis keputusan

mahkamah, keputusan dan kesan “acceleration” boleh ditentukan sementara

kewajipan kontraktor, tuntutan “acceleration” dan perjanjian “acceleration” dapat

dikenalpasti.

vii

TABLE OF CONTENTS

CHAPTER TITLE PAGE

DECLARATION ii

DEDICATION iii

ACKNOWLEDGEMENT iv

ABSTRACT v

ABSTRAK iv

TABLE OF CONTENTS vii-x

LIST OF CASES xi-xii

1 INTRODUCTION

1.1 Introduction 1

1.2 Problem Statement 6

1.3 Objective 10

1.4 Significance of the Study 11

1.5 Research Methodology 11

2 ACCELERATION

viii

2.1 Introduction 12

2.2 Types of Acceleration 15

2.2.1 Directive Acceleration 15

2.2.2 Voluntary Acceleration 16

2.2.3 Constructive Acceleration 17

2.3 Why Accelerate? 18

2.4 Acceleration Measures 26

2.5 Effect of Acceleration 27

2.6 Acceleration Agreement 30

2.7 Obligation to Accelerate 34

2.8 Acceleration Costs 38

2.9 Express Terms of Standard Forms 42

2.9.1 FIDIC 1998 43

2.9.2 ICE 7th

Edition 45

2.9.3 ECC 2nd

Edition 43

2.9.4 IChemE Red Book 46

2.9.5 MF/1 (Rev 4) 2000 47

2.9.6 JCT 1998 48

2.9.7 JCT 1998 With Contractor’s Design 49

2.9.8 JCT 1998 Prime Cost Contract 47

2.9.9 IFC 1998 50

2.9.10 JCT 1998 Minor Works 50

2.9.11 CECA Blue Form 1998 51

2.9.12 DOM/1 51

2.10 Conclusion 52

3 CONSTRUCTIVE ACCELERATION

3.1 Introduction 54

3.2 Acceleration Claim 58

3.3 Key Elements of Constructive Acceleration 60

3.4 Constructive Notice 67

ix

3.5 Constructive Time Impact 68

3.6 Disputed Constructive Acceleration 70

3.7 Conclusion 72

4 CASE LAW ANALYSIS

4.1 Introduction 74

4.2 Successful Case Law 79

4.2.1 Motherwell Bridge Construction Limited v Micafil

Vakuumtechnik 75

4.2.1.1 The Facts 75

4.2.1.2 The Decision 83

4.2.1.3 The Analysis 83

4.2.2 Norair Engineering Corp v. United States 82




4.2.3 SNC-Lavalin America, Inc. v. Alliant

Techsystems, Inc. 84




4.2.4 Fraser Construction Co. v. United States. 86




4.2.5 Morrison-Knudsen Co Inc v. British Columbia

Hydro & Power Authority. 89




x

4.2.6 W.A. Stephenson (Western) Ltd v Metro

Canada Ltd. 92




4.2.7 Perini Corporation v Commonwealth of Australia. 93




4.3 Unsuccessful Case Law 96

4.3.1 Ascon Contracting Limited v Alfred McAlpine

Construction Isle of Man Limited . 96




4.3.2 Fraser Construction Co. v. United States 100

4.3.2.1 The Facts 100



4.3.3 Mirant v Arup 103

4.3.3.1 The Facts 103



5 CONCLUSION

5.1 Conclusion 106

REFERENCES 110

xi

LIST OF CASES

Amec & Alfred McAlpine (Joint Venture) v Cheshire County Council

(1999) BLR 303, [2002] All ER (D) 42 (Apr)………………………………….………32

Ascon Contracting Limited v Alfred McAlpine

(1999) 66 Con. LR 119………………………………………….6, 35, 40, 64, 76, 96, 107

Citicorp Australia Ltd v Hendry(1985) 4 NSWLR 1……………..……………...……..42

Underground Electric Railways Co of London Ltd. (1912) AC 67…………….………14

Fraser Construction Co. v. United States

384 F.3d 1354 (Fed.Cir.2004)…………………………………...……….57, 86, 100, 108

Glenlion Construction Ltd v Guinness Trust (1987) 11 Con LR 126 ……………….8, 28

Hickman v Roberts (1913) AC 229……………………………………………………..21

John Barker Construction Ltd. v. London Portman Hotels Ltd.

(1996) 50 Con. LR 43; (1996) 12 Const. LJ 277………………………………....…16, 34

John Mowlem & Co plc v Eagle Star Insurance Co Ltd

(1992) 62 BLR 126……………………………………………….…………….……….21

Lubenham v South Pembrokeshire District Council (1986) 33 BLR 46……………..…22

Minster Trust Ltd v Traps Tractors Ltd [1954] 3 All ER 136 …………………...……..21

Mirant Asia-Pasific Construction (Hong Kong) Ltd v Ove Arup and Partners

International Ltd, Ove Arup and Partners Hong Kong Ltd

(2007) EWHC 918 (TCC)……………………………………………….….103, 105, 108

Morrison-Knudsen Ltd v British Columbia Hydro & Power Authority

(1978) 85 DLR (3d) 186………………………………………………....…….77, 89, 107

Motherwell Bridge Construction Limited v Micafil Vakuumtechnik

(2002) 81 Con LR 44……………………………………………………...…….37, 66, 79

xii

Multiplex Construction Pty Ltd v Abigroup Contractors Pty Ltd

(2005) 1 Qd R 610………………………………………………………………………38

Murdock & Sons Constr., Inc. v. Goheen Gen. Constr., Inc., 461 F.3d 837, 840 (7th Cir.

2006)…………………………………………………………………………………….85

Norair Engineering Corp v United States 666 F 2d 546 (1981)…………. 62, 76, 82, 107

Panamena Eurpea Navigation Compania Limitada v Frederick Leyland & Co Ltd.

(1947) AC 428…………………………………………………............................…21, 22

Perini Corporation v Commonwealth of Australia (1969) 12 BLR 82 ….......5, 24, 38, 93

Reed v Van der Vorm 33 BLR 140 (1985)………………………………………..…….23

SNC-Lavalin America, Inc. v. Alliant Techsystems, Inc.

2011 U.S. Dist. LEXIS 118312, 858 F. Supp. 2d 620 (W.D. Va. 2012)…………..84, 107

Waring v Manchester, Sheffield and Lincolnshire Railway Co

(1850) 2 H&Tw 239………………………………………………………………..…..38

W.A. Stephenson (Western) Ltd v Metro Canada Ltd

(1987), 27 C.L.R. 113………………………………………………………………...…92

Williams v Roffey Bros. & Nicholls (Contractors) Ltd. (1991)1 Q.B.1, (1990)1 All

ER512, (1990) 2 WLR 1153, (1989) 48BLR69, (1989) EWCA Civ 5……………....…30

CHAPTER 1

INTRODUCTION

1.1 Introduction

Modern construction contracts typically contain elaborate provisions

stipulating the time within which the contractor is required to complete the

construction of the works as well as the conditions under which such time may be

extended.1 The typical expressions used in construction contracts for the purpose of

ascertaining state of completion of a particular works include „practical completion‟

2 or „substantial completion‟,

3 distinguishing the state of the works at the time of

handover from that at final completion.4

It is normal for the contractual parties to fix a contract period for the

completion of the works and whether time is of the essence is ascertained by

examining the intention of the parties from the terms of the contract and the

1 Fong C.K. (2012) Law and Practice of Construction Contracts, p.508

2 The term „practical completion‟ is the term used in Clause 15 of PAM 2006 Standard Building Form.

This term is also the term used in Clause 39.2 of PWD Form 203A (Rev.1/2010)

3 The term „substantial completion‟ is the term used in Clause 48 of ICE Conditions of Contract for

Works of Civil Engineering Construction 7th Edition.

4 Kheng O.C. (2003) Extension of Time and Liquidated Damages in Construction Contracts, p.5

2

surrounding facts.5 The contractor‟s obligation to complete the works by the

completion date is, like all such obligations, backed up by legal sanctions,6 and if the

contract stipulated that time is „of the essence‟, the other party is entitled to terminate

the contract due to any delay in the work performance.7

Delays may be categorized from causation perspectives. First, delays caused

by the contractor are delays caused by parties for whom the contractor is responsible

in law, which often referred to as „culpable delay‟ and under most contracts the

contractor is neither entitled to extension of time nor recovery of loss and/or expense

on account of culpable delay.8 Second, delays caused by neutral events are those for

which neither the employer nor the contractor is responsible, for example

exceptionally adverse weather conditions. Most contracts allow the contractor more

time to complete but with no corresponding entitlement to recover any loss and/or

expense caused.9 Third, delays caused by the employer are delays caused by parties

for whom the employer is responsible in law. In-most standard forms, the contractor

is entitled to extension of time and recovery of loss and/or expense caused by this

type of delay.10

There is an obvious tension between the contractual parties‟ financial

interests in relation to delay because whoever is ultimately determined to be

responsible for the event that caused the delay must bear the financial

consequences.11

From the contractor‟s perspective, delay on an activity can cause

inefficiency in the carrying out the works and/or prolongation of the overall project

duration because productivity may be lowered when worker are required to work

5 Philip C.F. Chan (2002) Commonwealth Construction Cases, p.125

6 Clause 20.1 of CIDB Standard Form of Contract for Building Works 2000 Edition

7 Chappell D. (2011) Building Contract Claims, Fifth Edition, p.20

8 Rawling B.E. Concurrent Delays A Practical Approach – Part 1, Brian E Rawling Association

http://www.brianerawling.com/

9 John K.P., Caletka A.F.(2009) Delay Analysis in Construction Contracts, p.123

10 Ibid.

11 Dr C.S.Suryawanshi, A Legal Analysis of Some Clausal-Related Disputes in Construction

Contracts, http://www.nbmcw.com/


http://www.nbmcw.com/

3

overtime and when the contractor being compelled to abandon carefully designed

work plans for less efficient work methods.12

The impact is therefore that the contractor incurs additional costs, thus

reducing profitability.13

However, the prolongation impact often has more ruinous

consequences on profitability but in a different manner whereby resources have to be

kept on the project longer than planned, so the cost of the resources during the period

of prolongation is therefore extra.14

Furthermore, the contractor loses the opportunity

of redeploying his resources tied up on the delayed project on alternative work from

which to earn additional contribution to its profit and head office overheads.15

Contractors therefore have a very strong incentive to lay the blame for delays on

employers and demand financial compensation.16

Likewise, delay is equally a major financial risk to the employer. If the

economic capability of the overall commercial venture depends on the project

generating an income stream from a particular date, failure to complete the

construction project by that date could turn a profitable venture into a loss making

one.17

Even when the delay does not cause loss, it reduces profitability on account of

delay in the inception of revenue generation.18

Therefore, employer would claim

damages for breach of contract founded on the failure to complete on time which

typically specified in the contract terms as the amount of money to be paid to the

employer by the contractor for every day or week of delay in completing the project,

referred to as „liquidated damages‟.

12

Libor M.R. Overview Of Potential Construction Claims, p.12

13 Gray A. (2008) Acceleration Measures on Construction Contracts,

http://www.constructionweekonline.com/

14 Nelson D. (2013) What Is Constructive About Acceleration? p.13

15 Ibid.

16 Ibid.n11

17 Bajirao Patil (2011) Claims for Losses on Account of Overheads and Profit due to Delay in

Performance of Construction Contracts, http://www.legallyindia.com/

18 Ibid.n12, p.3


http://www.legallyindia.com/

4

However, for „excusable delay‟ the contractor is entitled to extension of time

in the sense that, by being entitled to extension of time, the contractor is excused

from liability for liquidated damages which would otherwise be payable. Delays for

which the contractor is entitled to recovery of loss and expense are said to be

„compensable.‟19

With the presence of extension of time and liquidated damages

clauses, it can be said that most of the time, time is „not of the essence‟ in

construction contracts with respect to the completion date.20

That is to say, for the

legal consequences flowing from a delay to the completion date or extended

completion date in most construction contracts, the applicable provision in Contracts

Act 1950 would be section 56(2).21

Somehow, it is normal for most contracts that get into delay, for whatever

reason for the contractor to take delay mitigation or acceleration measures to reduce

or extinguish such delay and to complete by the original date for completion or as

soon as possible thereafter.22

If there had been delay to the completion of the works

and the contractor is rightfully entitled to a time extension but, if the owner still

requires the works to be completed by the contractual completion date, instruction

can be issued to the contractor to increase the contractor‟s resources so as to catch-up

with the shortfall. This would be straightforward if there is provision in the contract

which allows for such a move.23

Alternatively, a supplementary agreement can be entered into between the

owner and the contractor to such effect.24

In another situation where the contractor

feels, correctly as it later turns out, that he is entitled to time extension but none has

19

Ibid.n11

20 Murdoch J., Hughes W. (2008) Construction Contracts Law and Management 4

th Edition, p.193

21 The only exception to this in a standard construction contract would be Clause 41.3 of JKR

Standard Form of Design & Build/Turnkey Contract (PWD Form DB/T), 2002 Edition.

22 Ibid.n8, p.1

23 Under clause 36.1 of NEC3 standard form of contract the project manager may instruct the

contractor to submit an acceleration quotation. As with the JCT form, the stated aim of acceleration is

to achieve completion before „the Completion Date‟.

24 Nelson M. (2008) To Accelerate or Not?, Construction Management Guide

5

been awarded, or the award of such time extension is delayed, and fearful that

liquidated damages may be imposed, the contractor without any instruction from the

contract administrator increase his resources. The contractor then claim for „loss and

expense‟ or „costs‟ incurred to reduce or extinguish delay. This situation would be

called ‘constructive acceleration’.25

The legal doctrine of constructive acceleration remains firmly established and

has developed into a well-known and relatively common claim on construction

projects in the United States.26

The position there is that if an employer causes delay

but refuses to grant an extension of time for it, and the contractor accelerates to win

back the lost time, the refusal of the employer or his certifier is treated as a

constructive instruction to accelerate, for which the contractor is entitled to

compensation under the contract.27

English law, for that matter by inference in this regard Malaysian law, does

not seem to implicitly accept this concept of constructive acceleration even though

American law does.28

In a decision of New South Wales Supreme Court, it was held

that as the certifier persistently ignores the contractor‟s request for time extension as

a consequence of which the contractor accelerated to complete on time. The court

decided the claim in favor of the contractor.29

Somehow, at common law, it is not permitted for one party to unilaterally

change the terms of a contract once the contract has come into existence, although a

variation clause does of course give such a power in respect of what is to be built.30

It

remains to be said that even if „loss and expense‟ or „costs‟ of constructive

25

Ibid.n4, p.15

26 Zack J.G. (2011) Constructive Acceleration – A Global Tour, p.1

27 Ibid.n14, p.3

28 Ibid.n4, p.16

29 Perini Corporation v. Commonwealth of Australia (1969) 12 BLR 90

30 Ibid.n20, p.212

6

acceleration is claimable, this is strictly beyond the jurisdiction of the contract

administrator and the same can only be pursued in arbitration or litigation.31

In the UK and other jurisdictions based upon UK law, contractors have for

many years looked to recover from employers the additional costs of implementing

acceleration measures even where there was no employer‟s instruction to implement

such measures.32

Such claims were based upon the legal doctrine of mitigation.

Although this philosophy does have its critics which advocate that the doctrine of

mitigation does not apply when there is extension of time and additional payment

clauses in a contract,33

many contractors have been successful with acceleration

claims where accordingly, proper procedures being put into place, notices issued and

particulars of the acceleration measures carefully recorded to establish „causal nexus‟

and the merits of such measures.34

1.1 Problem Statements

Most standard forms of contract in Malaysia, namely PWD Form 203A

(Rev.1/2010), PAM Contract 2006 and CIDB Standard Form of Contract For

Building Works 2000 Edition do not show express power that consents the owner or

contract administrator to instruct the contractor to accelerate the works. Where such a

provision does exist, the employer or contract administrator‟s authority to issue an

express instruction to accelerate the work normally arises only where the contractor

31

Ibid.n4, p.16

32 Ibid.n14, p.3

33 Refer to Ascon Contracting Limited v Alfred McAlpine Construction Isle of Man Limited (1999)

66 Con. LR 119

34 Ibid.n8, p.1

7

is himself responsible for the delay and he is required to expedite the progress of

work and accountable for any resulting costs.35

Even if the contractor is responsible for the delay, he may opt not to

accelerate and may rather pay liquidated damages, especially if the liquidated

damages rate is set too low. The contractor may discover that the cheaper option is

simply to overrun the project and incur the liquidated damages, rather than the more

expensive acceleration costs to complete the project on time.36

Therefore the

employer may only claim liquidated damages in this situation.

Nevertheless, what if the contractor is not liable for delays, but at the same

time entitlement to an extension of time has not been recognized? How can it be

possible to interpret the lack of action on the part of the contract administrator as an

„implied instruction‟ to accelerate? Can the contractor assume an implied action from

the contract administrator‟s conduct where he does not recognize any entitlement to

claim for delays initially?

The authority of the contract administrator comes from the provisions of the

contract.37

Whilst some standard forms of contract give authority to the contract

administrator to instruct a change to the sequence or timing of the work under the

variation provisions,38

this does not give the contract administrator the power to

instruct the contractor to accelerate the work so as to complete earlier than the then

date for completion while the contractor may not be required to actively co-operate

35

Sub-clause 8.6 of the FIDIC Conditions of Contract for Construction (1999), Clause 46(1) of the

ICE Form of Contract 7th

Edition

36 O‟Neill P.J. (2008) Challenges to Liquidated Damages, p.2

37 Refer Clause 3.0 of CIDB 2000 on Superintending Officer‟s Instruction, Clause 2.0 of PAM 2006

Standard Building Form on Architect‟s Instruction and Clause 5.0 of PWD Form 203A (Rev.1/2010)

on S.O.‟s Instruction

38 Refer Clause 11.1(d)(i) and (iv) of PAM 2006 Standard Building Form and Clause on definition of

variation that includes any changes to the provision in the Contract with regards to: any limitation of

working hours and the execution and completion of the work in any specific order

8

to enable the earlier date to be achieved but was only required not to hinder

completion.39

In one situation, acceleration arises if the contractor is required to complete

earlier than the contract date fixed for completion.40

The main issue will be whether

this requirement is variation to the contract. In practice the issue will turn on whether

it can be established that an instruction was given in those terms. A complication is

whether the failure of the contract administrator to properly grant an extension of

time, or simply the timing of the ascertainment of the extension of time due, together

with pressure from the employer or his agents for the contractor to complete by the

then fixed date for completion, is effectively an instruction to accelerate. This is the

issue of the „constructive acceleration‟.41

The essence of the problem is the exact nature of „temporary default‟, when

the contractor is not clear whether he is entitled to an extension of time and may

appear to be in breach of contract pending the final determination of extension of

time while left with the same choice, whether or not to accelerate.42

Until the

extension of time is granted, the contractor is in default or likely to be in default and

may decide that the most reasonable action in his commercial interests is to take

acceleration measures rather than incur potential liquidated damages.43

It is often disputed that the contractor should simply continue with the works

knowing that he is entitled to an extension of time and that he will recover any

prolongation costs and any liquidated damages wrongfully deducted when the matter

is reviewed by the appropriate tribunal.44

Indeed, if the contractor does increase

39

Refer Glenlion Construction Ltd v Guinness Trust (1987) 11 Con LR 126 at 127

40 Ibid.n12, p.11

41 Ibid.n14, p.3

42 Atkinson D. (2002) Delay and Disruption – Acceleration

43 Ibid

44 Ibid.n14, p.9

9

resources, that is a matter of choice on the part of the contractor unless at that stage

he is confident of attributing the delays as a direct employer breach.45

If he picked to accelerate, the contractor has to support his entitlement to

compensate acceleration claim based on proof of action and show that there is no

culpable delay on his part.46

Furthermore the contractor needs to demonstrate that

there is no prospect of an award of an extension of time, ever, and that any liquidated

damages payable would affect his business.47

Another difficulty faced by the contractor is that many standard forms of

contract visualise several stages in the determination of extensions of time by the

owner or contract administrator whereby some standard forms provide for the interim

assessment of extension of time followed by final review at some later stage.48

Therefore, the interim assessment is critical for the contractor to be able to justify

excusable delay and demonstrate the reasonableness of that „updated schedule‟ 49

and

its status at the time of the acceleration order.50

Depending on which stage the project is at when accelerative works need to

be undertaken, the contractor may find it challenging to satisfy the causation

requirements demonstrating that the need to accelerate is exclusively as a result of

the employers‟ actions or inactions and associated refusals to address the issue of

time. Now, with the availability of interim mechanism such as Dispute Adjudication

45

Ibid.n14, p.11

46 Wray R.W. (2008) Constructive Acceleration, Wray & Pierce. L.L.P.

47 Ibid.n14, p.11

48 Refer to Clause 23.1(a) and 23.1(b) of PAM Contract 2006 for initial estimate followed by final

claim for extension of time respectively

49 One way for the contractor to show that the excusable delay has actually affected the project

completion date is, by adding the period of excusable delay to its current planned schedule updated at

the time of the delay and calculate a new completion date.

50 Ibid.n46

10

Board‟s, the entitlement of extension of time may be resolved without waiting for

work completion.51

There is also the related issue of the extent of the contractors‟ obligation to

take measures to mitigate the consequences of a delay for which he may be entitled

to an extension of time and the effect this has on any entitlement to extension of time

and whether he can recover the cost of such measures.52

1.3 Objective

This dissertation is aimed at determining the contractor‟s entitlement to claim

for cost of acceleration especially in the case of constructive acceleration. This is

despite the lack of instruction or an implied instruction by the owner or contract

administrator to accelerate.

The study is intended to analyse the recommended six points test used in

litigation or arbitration in determining whether a constructive acceleration had

occurred on a project;53

i) excusable delay was encountered; ii) notice and extension

of time application was submitted; iii) no or less time extension was granted; iv)

contractor was threatened or coerced into accelerating to recover the time not

extended; v) contractor notify such action is tantamount to an instruction to

accelerate; vi) contractor accelerated and substantiated with documentation..

Findings of this dissertation will identify possible legal mechanisms to compensate

the contractor in the case of constructive acceleration.

51

Ibid.n14, p.12

52 Ibid.42

53 Ibid.n1, p.625

11

1.4 Significance of the Study

This dissertation should be a good reference especially for the contractors on

the possible rights to claim for acceleration carried out in order to complete work on

contractual completion date or even earlier.

1.5 Research Methodology

This dissertation involves extensive literature review on latest related matters

in the construction industry including standard forms of contracts, standard guidance

notes, reference books, journals, seminar papers and website resources.

Given the legalistic nature of this dissertation, the approach adopted in this

research is mainly case law based. Reference for case law reports is made to the

Lexis-Nexis website database. An overview of acceleration costs and established

principles for assessment is provided. Through the analysis of courts judgments, the

meaning and effects of acceleration can be determined while contractor‟s obligation,

acceleration claims and agreement can be identified and ascertained.

110

REFERENCES

Atkinson D. (2002) Delay and Disruption – Acceleration, Atkinson Law

Atkinson D. (2002) Delay and Disruption – Constructive Acceleration Claims,

Atkinson Law

Atkinson D. (2007) Mirant v Arup, Atkinson Law

Bailey J. (2011) Construction Law, Informa Publishing

Bajirao Patil (2011) Claims for Losses on Account of Overheads and Profit due to

Delay in Performance of Construction Contracts, http://www.legallyindia.com/

Barry B. Bramble, Michael T. Callahan (2010) Construction Delay Claims, Fourth

Edition, Wolters Kluwer, Law & Business

Becker J., Murphy T., Alternative Construction Delivery Methods,

http://www.mcmillan.ca/

Benjamin B. Hyden (2008) Highlights: The Anatomy of a Construction Acceleration

Claim

BK Entrusty (2011) What are Expedition, Mitigation & Acceleration? Master

Builders 2011

Brian E Rawling, (2005/6) Delay Mitigation, Brian E Rawling & Associates Limited

Brian E Rawling, Concurrent Delays A Practical Approach – Part 1, Brian E

Rawling Association http://www.brianerawling.com/

http://www.legallyindia.com/

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